Affirmative Action In Higher Education: Can You Justify Using Race And Gender In Your Admissions Process?
 
November 30, 2000
 
Sara L. Doyle- Atlanta

Since the 1978 Supreme Court case, Regents of the University of California v. Bakke, 438 U.S. 265 (1978), affirmative action in higher education admissions has faced a slow death through both the courts and legislatures in many states. This trend was continued recently in both Florida and Georgia.

In Florida, a court approved the governor’s One Florida plan that does away with affirmative action in admissions at the state universities. The approval of the plan was based on the court’s finding that there was no longer any evidence of past discrimination at the universities and, therefore, no longer any need for affirmative action-based admissions plans.

A district court in the Southern District of Georgia ruled that the University of Georgia (Georgia) violated both Title VI and Title IX by selecting students for admission based on race and gender. Johnson v. Board of Regents of the University System of Georgia, 106 F. Supp. 2d 1362 (2000).

In Johnson, applicants denied admission claimed that Georgia’s 1999 freshman admissions program violated their equal protection rights under the 14th Amendment. Georgia admitted freshman applicants based on a three-tier admissions process. The first tier was an academic analysis; the second tier a total student analysis; and the third tier an “edge” reading analysis. In 1999, Georgia automatically admitted applicants who, under the academic analysis, satisfied a minimum 2.86 academic index (AI) score and a minimum SAT score. Those who did not satisfy these criteria, but met a lower minimum AI score, were subjected to the second and third tier processes.

In the second tier, those students with AI scores above 2.4 were re-ranked to obtain a total student index (TSI) score. To obtain a student’s TSI, Georgia added points to the AI score, determined by the applicant’s characteristics. Non-white applicants received an additional .5 to their AI score and male applicants received an additional .25 points to their AI score. Georgia admitted all applicants with a TSI above 4.92 and automatically denied all applicants who had a TSI below 4.66.

In the third tier of the admissions process, Georgia once again re-ranked the applicants who were not admitted or rejected during the second tier by submitting the application to an “edge” reader who attempted to discern special qualities of an applicant that had not readily appeared during the first two tiers of the admissions process.

Georgia’s 1999 admissions policy was developed after and based on the Bakke ruling in which Justice Powell wrote the “interest of diversity is compelling in the context of a university’s admission program.” Georgia’s articulated reason for using race and gender in its admissions process was student body diversity.

The district court disagreed with Georgia’s stated reason for using race and gender in admissions: not because diversity could never be a compelling interest, but because Georgia could not articulate why diversity was important in its educational setting or how its admissions program was narrowly tailored to reach its stated goal of diversity. The district court noted that remedying the effects of an institution’s own past discrimination was a compelling interest sufficient to withstand constitutional attack. However, Georgia did not assert this as a basis for its admissions program.

The district court found Georgia’s articulated reason for using race and gender in its admissions process was generalized, ill-defined and relied on stereotypical assumptions about members of particular races and gender, and further that Georgia never identified with particularity how the goal of student body diversity would ever be met by its admissions program. As a result, the court saw Georgia’s admissions program as giving preferential treatment to minorities and males solely because the applicant was a minority or a male. In the eyes of the district court, Georgia was engaging in nothing more than naked racial and gender balancing, which was clearly unconstitutional.

After scolding other courts for dodging the hard decisions raised by affirmative action programs, the Georgia district court explicitly held that student body diversity in higher education was not a compelling interest sufficient to overcome Title VI and IX’s prohibitions against racial and gender discrimination.

Both Georgia and the plaintiffs in Johnson have appealed the court’s order to the Eleventh Circuit Court of Appeals. Any decision by the Eleventh Circuit will directly impact institutions of higher education in the states of Georgia, Florida and Alabama, and likely will have an indirect influence on institutions in other states.

In the meantime, what can an institution of higher education learn from Georgia’s case? Use of gender and race in admissions is not absolutely prohibited. An institution of higher education may employ race and/or gender in its admissions process to correct the effects of its own past discrimination. However, the institution must be able to prove that the effects of discrimination still exist. An institution of higher education also may be able to use race and gender in admissions if it is able to articulate and demonstrate how the use of such factors is narrowly tailored to achieve the institution’s goal of diversity. It will be necessary for the institution to have hard facts showing how and when the goal of diversity will be accomplished by its admissions plan.

In short, an institution of higher education has an extremely high burden to justify the use of use of race or gender in its admissions decisions. To avoid legal attacks, and yet still cultivate diverse student bodies, higher education institutions have to develop admissions policies that do not rely on quotas or other methods of explicitly balancing racial, ethnic, gender and other factors. This is not an easy task.